Citation Nr: 1241138
Decision Date: 12/03/12 Archive Date: 12/12/12
DOCKET NO. 10-27 608A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky
THE ISSUES
1. Entitlement to service connection for sleep apnea.
2. Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD) and a major depressive disorder.
3. Entitlement to an increased rating for PTSD and a major depressive disorder, currently evaluated as 30 percent disabling.
4. Entitlement to an increased rating for bilateral hearing loss, currently evaluated as 10 percent disabling.
5. Entitlement to an increased rating diabetes mellitus, Type II, currently evaluated as 10 percent disabling.
6. Entitlement to a total disability rating for compensation based on individual unemployability, due to service-connected disabilities (TDIU).
REPRESENTATION
Appellant represented by: Kentucky Department of Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Brian J. Milmoe, Counsel
INTRODUCTION
The Veteran served on active duty from June 1968 to June 1970, to include service in Vietnam from December 1968 to October 1969.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in March 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, denying the Veteran's claims for service connection for sleep apnea and hypertension and his claims for increase.
The Veteran was afforded a videoconference hearing before the Board in January 2012, a transcript of which is of record. Following that hearing, the Veteran in February 2012 submitted to the RO additional medical evidence consisting of VA medical treatment records compiled through early February 2012, along with a written waiver for initial RO review of that evidence.
The issues of the Veteran's entitlement to service connection for hypertension and to increased ratings, including TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the VA's Appeals Management Center (AMC) in Washington, DC.
FINDING OF FACT
By his written statement, received by VA in December 2011, the Veteran withdrew from appellate consideration his claims for service connection for sleep apnea and for an increased rating for diabetes mellitus, Type II.
CONCLUSION OF LAW
The criteria for withdrawal of the Veteran's appeal as to the issues of his entitlement to service connection for sleep apnea and to an increased rating for diabetes mellitus, Type II, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant has withdrawn that portion of his appeal involving the issues of entitlement to service connection for sleep apnea and to an increased rating for diabetes mellitus, Type II, and, hence, there remain no allegations of errors of fact or law for appellate consideration as to those matters. Accordingly, the Board does not have jurisdiction to review that portion of the appeal and it must be dismissed.
ORDER
The appeal relating to the issues involving the Veteran's entitlement to service connection for sleep apnea and to an increased rating for diabetes mellitus, Type II, is dismissed.
REMAND
At his January 2012 hearing, the Veteran testified that his hearing loss and PTSD with a major depressive disorder had worsened since each entity was last subject to a VA examination. He specifically indicated that he was to see his VA audiologist in late January 2012, but the report of that consultation while identifying a bilateral, moderate to profound sensorineural hearing loss did not include sufficient audiometric data to rate the current severity of the Veteran's bilateral hearing loss. He further indicated that he was receiving weekly care for his PTSD at the VA's outpatient medical facility in Fort Thomas, Kentucky, as part of the VA Medical Center in Cincinnati, Ohio. He likewise stated that he was rendered unemployable by his service-connected disabilities, particularly by his PTSD and major depression. In view of the foregoing and the VA's duty-to-assist obligation, remand to obtain any additional treatment records and to afford the Veteran additional VA examinations is deemed to be in order.
The record reflects that a VA medical opinion was obtained in February 2010 as to the relationship of the Veteran's hypertension to his service-connected PTSD. That opinion was as follows:
It is my medical opinion that the veteran's hypertension... are not caused by or the result of his PTSD.
The stated rationale was that a referenced medical textbook did not list hypertension as a complication of PTSD.
A disability will be service connected when that disability is "proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a) (2012). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b) (2012). Therefore, a disability may be service connected on a secondary basis by demonstrating that that disability is either (1) "proximately due to or the result of [an already] service-connected disease or injury," 38 C.F.R. § 3.310(a) (2012), or (2) aggravated by an already service-connected disease or injury, "whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition," Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); Kyhn v. Shinseki, 24 Vet. App. 228, 240 (2011); Smith v. Shinseki, 24 Vet. App. 40, 49 (2010).
The U.S. Court of Appeals for Veterans Claims has indicated that "not due to," "not cause by," or "not related to" a service-connected disability is insufficient to address the question of aggravation under § 3.310(b). See Allen v. Brown, 7 Vet. App. at 449) ("[I]t is a big stretch of the English language to construe the phrase 'no etiological relationship between the veteran's service-connected right knee arthritis and the subsequent onset of left knee and bilateral hip arthritis' as encompassing aggravation, especially considering the use of the word 'onset.'").
The Veteran's virtual VA claims folder indicates that by its rating decision of October 2012 the RO granted service connection for coronary artery disease with residuals of a myocardial infarction, based on the Veteran's presumed inservice exposure to Agent Orange. However, 38 C.F.R. § 3.309(e) (2012) specifically excludes hypertension from the presumption of service incurrence for ischemic heart disease based on inservice herbicide exposure. Nevertheless, additional VA medical examination and opinion are deemed necessary by the Board to more fully address the questions of direct and presumptive service incurrence of the Veteran's hypertension and the nature of the relationship, including direct causation and aggravation, between his hypertension and his service-connected PTSD and major depressive disorder.
Lastly, notice is also taken that additional, pertinent evidence was added to the Veteran's virtual VA claims folder in October 2012. That evidence consists of VA treatment records compiled through a portion of October 2012 relating in part to the Veteran's PTSD, hearing loss, and other service-connected disabilities. It likewise was not considered by the RO as to the appellate issues or addressed in any supplemental statement of the case, nor was it accompanied by a written waiver for its initial review by the RO. Remand to ensure that such evidence is fully considered by the RO is required. See 38 C.F.R. §§ 19.31, 19.37 (2012).
Accordingly, this portion of the Veteran's appeal is REMANDED for the following actions:
1. Obtain all pertinent records of VA medical treatment, not already on file, for inclusion in the Veteran's VA claims folder, to include any and all records involving treatment administered for his PTSD and major depressive disorder at the VA's outpatient facility in Fort Thomas, Kentucky.
2. Thereafter, afford the Veteran a VA medical examination in order to assess the nature and etiology of any indicated hypertension. The Veteran's VA claims folder should be made available to the examiner for use in the study of this case and the report of such examination should indicate whether the claims folder was made available and reviewed. That examination should include a detailed review of the Veteran's history and current complaints, as well as a comprehensive clinical evaluation and any and all indicated diagnostic testing. All applicable diagnoses should be fully set forth.
The VA examiner should be asked to address the following, providing a complete rationale for each opinion provided:
Is it at least as likely as not (50 percent or greater probability) that any hypertension of the Veteran originated during his period of active duty from June 1968 to June 1970 or within the one-year period immediately following his discharge from active service in June 1970, or was directly caused or aggravated by his service-connected PTSD and a major depressive disorder?
The VA examiner is advised that that the term as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of service incurrence, causation or aggravation as to find against any such matter. More likely and as likely support the claim; less likely weighs against the claim.
The VA examiner is further advised that aggravation for legal purposes is defined as a worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms.
3. Afford the Veteran a VA psychological or psychiatric examination for the purpose of evaluating the nature and severity of his service-connected PTSD and major depressive disorder. The Veteran's VA claims folder should be made available to the examiner for use in the study of this case and the report of such examination should indicate whether the claims folder was made available and reviewed. That examination should include a detailed review of the Veteran's psychological or psychiatric history and current complaints, as well as a comprehensive mental status evaluation and any and all indicated diagnostic testing. All pertinent diagnoses should be fully detailed and a score on the Global Assessment of Functioning Scale should be assigned solely on the basis of the Veteran's service-connected PTSD and major depressive disorder.
4. Afford the Veteran a VA audiological examination in order to assess the nature and severity of his bilateral hearing loss. The Veteran's VA claims folder should be made available to the examiner for use in the study of this case and the report of such examination should indicate whether the claims folder was made available and reviewed. That examination should include a detailed review of the Veteran's history and current complaints, as well as a comprehensive clinical evaluation and any and all indicated diagnostic testing.
5. Afford the Veteran a VA examination in order to ascertain the effects of his service-connected disorders and their effect upon his employability. The Veteran's VA claims folder should be made available to the examiner for use in the study of this case and the report of such examination should indicate whether the claims folder was made available and reviewed. That examination should include a detailed review of the Veteran's history and current complaints, as well as a clinical evaluation and any and all indicated diagnostic testing. All pertinent diagnoses should be fully detailed.
The VA examiner is also asked to furnish an opinion, with a complete supporting rationale, as to the following:
Is it at least as likely as not (50 percent or greater probability) that the Veteran's service-connected disabilities, alone, preclude him from obtaining and maintaining substantially gainful employment, based on his educational and occupational background? When providing the opinion the examiner should not consider the Veteran's nonservice-connected disabilities or his age.
The VA examiner is advised that the term as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of unemployability as to find against unemployability. More likely and as likely support unemployability; less likely weighs against the claim.
6. Lastly, after ensuring that all requested development has been completed in accordance with the instructions noted above, readjudicate the issues on appeal on the basis of all of the evidence of record, to include specifically all evidence received by VA since entry of the statement of the case of June 2010. If any benefit sought by this appeal continues to be denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded a period of time in which to respond, before returning the claims folder to the Board for further review.
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No inference should be drawn as to the outcome of this matter by the actions herein requested.
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs